TERMS OF SERVICE

Last Updated: July 25, 2016

Welcome to the Bodymatter, Inc. (“Bodymatter”) website located at sleepwatchapp.com (the “Site”). Please read these Terms of Service (the “Terms”) carefully because it governs your use of our Site and our mobile device application (“App”) when you use the App or Site. To make these Terms easier to read, the Site, our services and App are collectively called the “Services.” By accessing or using the Services you agree to be bound by these Terms.

CHANGES TO TERMS OR SERVICES

Bodymatter reserves the right, at its sole discretion, to modify, discontinue or terminate the Site, Services or App or to modify these Terms, at any time and without prior notice. If we modify these Terms we’ll post the modification on the Site or via the App or provide you with notice of the modification. We’ll also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site, Services or App after we have posted a modification on the Site or via the App or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services and App.

Who May Use the Services

ELIGIBILITY

You may use the Services only if you are 13 years or older and capable of forming a binding contract with Bodymatter and are not barred from using the Services under applicable law.

Registration and Your Information

If you want to use certain features of the Services you’ll have to register with Bodymatter, create an account (“Account”) and provide certain information about yourself as prompted by the registration form.

It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.

PASSWORDS

You are responsible for safeguarding the password that you use to access the Services and for any activities or actions under your password. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account. Bodymatter cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

THE SERVICES

Bodymatter does not offer any kind of medical advice and any content accessed through the Services is for informational purposes only. Please consult your doctor or qualified healthcare provider if you have any questions or concerns about any information or Content you access via the Services.

FEEDBACK

We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing support@sleepwatchapp.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicenseable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.

PRIVACY POLICY

Bodymatter respects your privacy and will only disclose your personally identifiable information to third parties as described in our Privacy Policy which can be found at sleepwatchapp.com/privacy and describes how we collect, use and disclose information from our users.

CONTENT AND CONTENT RIGHTS

For purposes of these Terms, “Content” means information, text, graphics or other materials that are uploaded, downloaded, generated, provided or otherwise made available through the Services.

Content Ownership, Responsibility and Removal

Subject to the foregoing, Bodymatter and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.

Bodymatter's RIGHTS

By using the Services you hereby grant to Bodymatter a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute any Content you provide to Bodymatter in connection with operating and providing the Services and Content to you and to other Account holders.

YOUR RIGHTS

Subject to your compliance with these Terms, Bodymatter grants you a limited, non-exclusive, non-transferable, non-sublicenseable license to download, view, copy, display and print the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.

 

Rights and Terms for Apps

RIGHTS IN APP GRANTED BY bodymatter

Subject to your compliance with these Terms, Bodymatter grants you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. Bodymatter reserves all rights in and to the App not expressly granted to you under these Terms.

ADDITIONAL TERMS FOR APP STORE APPS

If you download the App through or from any app store or distribution platform (like the Apple App Store or Google Play) where the App is made available (each, an “App Provider”), then you acknowledge and agree that:

These Terms are concluded between you and Bodymatter, and not with the App Provider, and that Bodymatter (not the App Provider), is solely responsible for the App.The App Provider has no obligation to furnish any maintenance and support services with respect to the App.In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Bodymatter. The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.In the event of any third-party claim that the App or your possession or use of that App infringes that third party’s intellectual property rights, Bodymatter will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.The App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the App, and that, upon your acceptance of the terms and conditions of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.You must also comply with all applicable third-party terms of service when using the App.You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws or regulations. By using the App you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

You may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means.

ACCEPTABLE USE POLICY

Bodymatter respects its users and expects its users to respect Bodymatter and one another. You agree that you will use the Services only in a manner consistent with the following Acceptable Use Policy.

YOU AGREE NOT TO POST CONTENT THAT:

contains any information or content we deem to be hateful, violent, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable;infringes any third party’s intellectual property rights, privacy rights, publicity rights, or other personal or proprietary rights;creates a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to yourself, to any other person, or to any animal or seeks to harm or exploit children;may create a risk of any other loss or damage to any person or property;violates, or encourages any conduct that violates laws or regulations or contains illegal information or contentis fraudulent, false, misleading, or deceptive.

YOU PROMISE NOT TO DO ANY OF THE FOLLOWING:

Use, display, mirror or frame the Services, any individual element within the Services, the Bodymatter name, trademark, logo or other proprietary information, or the layout and design of the Services, without our express written consent;Access, tamper with, or use non-public areas of the Services, our computer systems, or the technical delivery systems of our providers;Attempt to probe, scan, or test the vulnerability of any Bodymatter system or network or breach any security or authentication measures;Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Bodymatter or any of our providers or any other third party (including another user) to protect the Services or Content;Attempt to access or search the Services, Content or scrape or download Content from the Services, or otherwise use, upload content to the Services through the use of any engine, software, tool, agent, device or mechanism (including automated scripts, spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Bodymatter or other generally available third party web browsers;Send any unsolicited or unauthorized, advertising messages, promotional materials, email, junk mail, chain letters or other form of solicitation;Use any meta tags or other hidden text or metadata utilizing a Bodymatter trademark, logo, URL, or product name without Bodymatter’s express written consent;Use the Services for any commercial purpose or the benefit of any third party, except as otherwise explicitly permitted for you by Bodymatter or in any manner not permitted by the Terms;Use user information to forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;Perform any activity in connection with use of our products and the Services that poses a risk of harm or death to oneself of another;Impersonate or misrepresent your affiliation with any person or entity;Violate any applicable law or regulation; orEncourage or enable any other individual to do any of the activities noted above.

LINKS TO THIRD PARTY WEBSITES OR RESOURCES

The Services and App may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.

TERMINATION

We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time contacting our support team.

WARRANTY DISCLAIMERS

THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.

INDEMNITY

You agree to defend, indemnify, and hold Bodymatter, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Services, App or your violation of these Terms.

LIMITATION OF LIABILITY

NEITHER BODYMATTER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING PHYSICAL INJURY, DEATH, LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BODYMATTER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

IN NO EVENT WILL BODYMATTER’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO BODYMATTER FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO BODYMATTER, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BODYMATTER AND YOU.

 

Dispute Resolution

GOVERNING LAW

These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.

AGREEMENT TO ARBITRATE

You and Bodymatter agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Bodymatter are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Bodymatter otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

ARBITRATION RULES

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

ARBITRATION PROCESS

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration athttp://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

ARBITRATION LOCATION AND PROCEDURE

Unless you and Bodymatter otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Bodymatter submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

ARBITRATOR'S DECISION

The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Bodymatter will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

FEES

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Bodymatter will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

CHANGES

Notwithstanding the provisions of the “Modification” section above, if Bodymatter changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to support@sleepwatchapp.com within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Bodymatter’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Bodymatter in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

GENERAL TERMS

These Terms constitute the entire and exclusive understanding and agreement between Bodymatter and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Bodymatter and you regarding the Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

You may not assign or transfer these Terms, by operation of law or otherwise, without Bodymatter's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Bodymatter may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Any notices or other communications provided by Bodymatter under these Terms, including those regarding modifications to these Terms, will be given by Bodymatter: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Bodymatter's failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Bodymatter. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

CONTACT INFORMATION

These Services are operated and provided by Bodymatter, Inc., 19000 MacArthur Blvd Suite 450, Irvine, California 92612. If you have any questions about these Terms or the Services, please email us at support@sleepwatchapp.com.